1. PUBLIC INTERNATIONAL LAW
UNIT 21

2. Answer the following questions:
1. What is the difference between private and public international law?
2. What does public international law regulate?
3. Can you think of some differences between national law and international law?
4. According to you, why is international law sometimes referred to as "soft law"?

3. Preview 1. Definition of public international law
2. Subjects of international law : International legal personality
3. Hierarchy of sources of international law
4. History of international law
5. International law vs. domestic law
6. Some areas of international law
7. State responsibility
8. Use of force

4. Definition and subjects of international law
International law can be defined as a body of rules which regulate the behaviour of states and other entities operating on the international plane in their relations with each other.
This definition represents a departure from the traditional definition, which reflected the view that states were the only subjects of international law.
What is required for other entities is that they be recognised as possessing at least a degree of international legal personality.

5. International legal personality
International legal personality entails the possession of international rights and duties as well as the procedural capacity to seek redress for alleged violations and be held accountable for non- fulfilment of duties.
States are the primary and original subjects of international law and they possess full international legal personality.

6. Other entities
Other entities also have a degree of international personality. Most important of these are international organisations.
An international organisation is established by agreement and has states as its members.
The key to determining the international personality of international organisations is its constituent document, e.g. the Charter of the United Nations.

7. Individuals Individuals can no longer hide behind the state apparatus.
During the Nuremberg trials it was stated that "crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced."
Individual liability for war crimes, crimes against humanity and genocide
Individuals have limited procedural capacity and enjoy only that capacity given to them by states.

8. Sources of international law
a)      international agreements
b)      international custom
c)      general principles of law recognised by civilised nations
d)     judicial decisions
e)      teachings of jurists

9. SOURCES OF INTERNATIONAL LAW
Formal Sources
Treaties
International custom
General principles of law recognised by civilised nations
Material Sources
Judicial decisions and teachings of jurists

10. Hierarchy of sources
Any treaty provision existing between the parties to the dispute must be applied;
if there is no treaty, then a rule of international custom.
If there is neither a prevailing treaty provision nor a custom then general principles;
in the absence of any of the foregoing, judicial decisions and writings of jurists should be applied.

11. Customary international law
Customary international law derives from the practice of states.
State practice may give rise to customary international law when that practice is uniform, consistent and general, and if it is coupled with the belief that the practice is obligatory rather than habitual.

12. Treaties
Treaties are evidence of the express consent of states to regulate their interests according to international law.
Most international legal relationships between states are now governed by treaties.
Generally a treaty only binds the parties to it, while a general rule of customary international law binds all states.
The two sources will interact and will occasionally come into conflict.

13. Relationship of customary international and treaty law
Customary international law and treaty law have equal authority
If both exist regarding the disputed issue treaty law takes precedence
A treaty law will not be given precedence over jus cogens

14. Peremptory norms (ius cogens ‘compelling law’)
Fundamental principles of international law from which no derogation is ever permitted
A treaty provision contrary to ius cogens is void
Apply erga omnes, accepted and recognised by the international community and may be found either in treaty or custom

15. Peremptory norms (ius cogens ‘compelling law’)
Prohibitions on:
Waging aggressive war
Crimes against humanity
War crimes
Genocide
Maritime piracy
Apartheid
Slavery
Torture

16. General principles
General principles of law recognised by civilised nations are:
1) actual rules of international law which are of so broad a description that they can be called  principles, and
2) maxims of universal application in domestic law, which obviously ought to apply in the international sphere as well (e.g. the rule against bias: “Nemo iudex in causa sua” ‘No one should be a judge in his own cause’, the principle of reparation, the principle of a state’s responsibility for its agents)

17. Judicial decisions
Judicial decisions have no binding force except between the parties to the case and in respect of that particular case.
Stare decisis is not applicable in international law.
However, previous decisions are examined and taken into account.

18. International vs. National law
International law is often criticised as not being law.
It is not law if law is defined as in the context of domestic law.
The international legal system is decentralised and based on consent unlike any domestic legal system, which is centralised and imposed.
The role of consent is best reflected in the way in which international law is made, by way of treaties concluded through agreements of consenting states and customary international law, which has emerged through the practice of states.

19. International vs. National law
There is no international legislature enacting binding rules nor is there an international executive enforcing international laws.
There is an International Court of Justice (ICJ) where states can seek a solution to disputes, but acceptance of the Court's jurisdiction is based on consent and is not mandatory.
However, international law once created assumes a mandatory character and should not be disregarded by those subject to it.
In case of a conflict between domestic and international law, international law is regarded as supreme.

20. Reciprocity
Reciprocity plays an important role in the creation and observance of international law;
it guarantees that states respect each other's sovereignty.

21. State responsibility
State responsibility denotes the liability of a state for conduct in breach of international law, which causes injury to another state or that state's nationals.
The breach of international law involves an obligation to make reparation in an adequate form.
The aim of reparation is to restore previous conditions and, if this is not possible, to give compensation, either in kind or with money.

22. Use of force
Aggression is regarded as a crime against the peace for which there is responsibility under international law.
Article 51 of the UN Charter permits a state to exercise its inherent right of individual or collective self-defence.
The right of self-defence subsists until the Security Council has taken measures necessary to maintain international peace and security. The Security Council may under Art. 42 authorise the use of force as may be necessary to maintain or restore international peace and security.

23. Use of force
States may employ force to protect nationals who are seen as being at risk abroad.
The right to use force in anticipation of an armed attack remains a controversial issue (anticipatory self-defence?)
Humanitarian intervention involves the use of force to protect another state’s nationals.
The right of humanitarian intervention is not clearly established in international law.

24. Areas of international law
International human rights law deals with the protection of individuals and groups from violations of their internationally guaranteed rights

25. Areas of international alw
International environmental law challenges many fundamental concepts of traditional international law.
The global nature of environmental issues means that national action by itself, while important, may be insufficient, and that significant international cooperation is required.

26. Areas of international law
International economic law has become a distinct part of the international legal system and it influences developments in other areas of international law.
It involves, for example, entities other than states, in particular transnational corporations.
It also challenges some concepts of state sovereignty, and is a potential regulator of the processes of globalisation.

27. videos https://www.youtube.com/watch?v=0ViSYjt-wGw

28. Points to remember
Public international law/Private international law/supranational law
Sources of international law
Subjects of international law
Areas of international law

29. Match the verbs with the appropriate nouns from the text to make collocations
1.commit
treaty
2.conclude
force
3.enact
peace
4.exercise
redress
5.maintain
reparations
6.make
right
7.respect
rules
8.seek
sovereignty
9.use
crimes

30. Freedom of the High Seas
flag lay navigation piracy research states suspected   territorial
Freedom of the High Seas
The high seas are open to all __________with each state possessing the freedoms of _____________and overflight and the freedom to _________ submarine cables and pipelines, to conduct scientific ______________and to fish. On ships on the high seas, jurisdiction is exercised by the ______________ state (i.e., the state whose flag is flown by the particular ship). Nevertheless, warships have the right to board a ship that is suspected of engaging in ___________ , the slave trade,  or unauthorized broadcasting. There also is a right of “hot pursuit,” provided that the pursuit itself is continuous, onto the high seas from the ______________ sea or economic zone of the pursuing state in order to detain a vessel __________of violating the laws of the coastal state in question.

31. airspace Assembly benefit heritage Treaty
Outer space
Outer space lies beyond the currently undefined upper limit of a state’s sovereign ___________. It was declared free for exploration and use by all states and incapable of national appropriation by a UN General _______________ resolution. The Outer Space ___________________ (1967) reiterated these principles and provided that the exploration and use of outer space should be carried out for the ________________of all countries. The Moon Treaty (1979) provided for the demilitarization of the Moon and other celestial bodies and declared the Moon and its resources to be a “common __________________ of mankind.” A number of agreements concerning space objects (1972 and (1974) and the rescue of astronauts (1968) have also been signed.

32. Discuss the following:
1. Can the use of force be justified under any circumstances? Give your arguments.
2. Can force be used in anticipatory self-defence? Give your reasons.
3. What do you think about the right of humanitarian intervention?

33. MULTILATERAL Vienna Convention on the law of treaties (with annex)
MULTILATERAL Vienna Convention on the law of treaties (with annex). Concluded at Vienna on 23 May 1969 Authentic texts: English, French, Chinese, Russian and Spanish.
Considering the fundamental role of treaties in the history of international relations,
Recognizing the ever-increasing importance of treaties as a source of international law and as a means of developing peaceful co- operation among nations, whatever their constitutional and social systems,
Noting that the principles of free consent and of good faith and the pacta sunt servanda rule are universally recognized,

34. MULTILATERAL Vienna Convention on the law of treaties (with annex)
MULTILATERAL Vienna Convention on the law of treaties (with annex). Concluded at Vienna on 23 May 1969
Affirming that disputes concerning treaties, like other international disputes, should be settled by peaceful means and in conformity with the principles of justice and international law,
Recalling the determination of the peoples of the United Nations to establish conditions under which justice and respect for the obligations arising from treaties can be maintained,

35. MULTILATERAL Vienna Convention on the law of treaties (with annex)
MULTILATERAL Vienna Convention on the law of treaties (with annex). Concluded at Vienna on 23 May 1969
Having in mind the principles of international law embodied in the Charter of the United Nations, such as the principles of the equal rights and self-determination of peoples, of the sovereign equality and independence of all States, of non interference in the domestic affairs of States, of the prohibition of the threat or use of force and of universal respect for, and observance of, human rights and fundamental freedoms for all,

36. MULTILATERAL Vienna Convention on the law of treaties (with annex)
MULTILATERAL Vienna Convention on the law of treaties (with annex). Concluded at Vienna on 23 May 1969
Believing that the codification and progressive development of the law of treaties achieved in the present Convention will promote the purposes of the United Nations set forth in the Charter, namely, the maintenance of international peace and security, the development of friendly relations and the achievement of co-operation among nations,
Affirming that the rules of customary international law will continue to govern questions not regulated by the provisions of the present Convention,
Have agreed as follows:

37. PART I. INTRODUCTION Article 1. SCOPE OF THE PRESENT CONVENTION
The present Convention applies to treaties between States .

38. Article 2. USE OF TERMS 1. For the purposes of the present Convention:
(a) "Treaty" means an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation;
(b) "Ratification", "acceptance", "approval" and "accession" mean in each case the international act so named whereby a State establishes on the international plane its consent to be bound by a treaty

39. Use of terms
(c) "Full powers" means a document emanating from the competent authority of a State designating a person or persons to represent the State for negotiating, adopting or authenticating the text of a treaty, for expressing the consent of the State to be bound by a treaty, or for accomplishing any other act with respect to a treaty;

40. SECTION 3. INTERPRETATION OF TREATIES Article 31, GENERAL RULE OF INTERPRETATION
1. A treaty shall be interpreted in good faith in accordance with the ordinary
meaning to be given to the terms of the treaty in their context and in the light of its
object and purpose.
2. The context for the purpose of the interpretation of a treaty shall comprise,
in addition to the text, including its preamble and annexes:
(a) Any agreement relating to the treaty which was made between all the parties in
connection with the conclusion of the treaty;
(b) Any instrument which was made by one or more parties in connection with the
conclusion of the treaty and accepted by the other parties as an instrument
related to the treaty.

41. Rules of interpretation
3. There shall be taken into account, together with the context:
(a) Any subsequent agreement between the parties regarding the interpretation of
the treaty or the application of its provisions;
(b) Any subsequent practice in the application of the treaty which establishes the
agreement of the parties regarding its interpretation;
(c) Any relevant rules of international law applicable in the relations between the
parties.
4. A special meaning shall be given to a term if it is established that the parties
so intended.

42. Article 32. SUPPLEMENTARY MEANS OF INTERPRETATION
Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31 :
(a) Leaves the meaning ambiguous or obscure; or
(b) Leads to a result which is manifestly absurd or unreasonable.

43. Article 33. INTERPRETATION OF TREATIES AUTHENTICATED IN TWO OR MORE LANGUAGES
1. When a treaty has been authenticated in two or more languages, the text is equally authoritative in each language, unless the treaty provides or the parties agree that, in case of divergence, a particular text shall prevail.
2. A version of the treaty in a language other than one of those in which the text was authenticated shall be considered an authentic text only if the treaty so provides or the parties so agree.

44. Supplementary means of interpretation
3. The terms of the treaty are presumed to have the same meaning in each authentic text.
 4. Except where a particular text prevails in accordance with paragraph 1, when a comparison of the authentic texts discloses a difference of meaning which the application of articles 31 and 32 does not remove, the meaning which best reconciles the texts, having regard to the object and purpose of the treaty, shall be adopted.

45. Article 85. AUTHENTIC TEXTS
The original of the present Convention, of which the Chinese, English, French,
Russian and Spanish texts are equally authentic, shall be deposited with the
Secretary-General of the United Nations.
IN WITNESS WHEREOF the undersigned Plenipotentiaries, being duly authorized
thereto by their respective Governments, have signed the present Convention.
DONE at Vienna, this twenty-third day of May, one thousand nine hundred and
sixty-nine.

46. Answer the following 1. What is the basic structure of the Convention?
2.      Why are definitions important in international agreements?
3.      Are definitions included in other types of legal documents? Why?
4. Which fundamental principles of international law are enshrined in the Convention?
5. Which principles shall be applied in the interpretation of the Convention?
6. How should treaties authenticated in two or more languages be interpreted?

47. Research
Compare the rules of interpretation in the Convention with those of the UK statutory interpretation (See: Unit 1: Sources of English Law). Discuss similarities and differences